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September 2021
Letter from the Executive Director
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HVAC Technologies Promise to Help Schools Reopen Safely
Array of indoor air quality products available, but evaluate carefully
Contributed by the ACHR News
As the school year starts, districts across the country are still deciding if they will have in-person classes and if the students in those classes will be wearing masks. HVAC plays a major part in these decisions, with districts spending millions of dollars to improve ventilation and add IAQ features. Several companies are promoting their solutions to the school market.
Air-Clenz Systems is one of those companies. It recently released a video specific to the school market showing how its technology helps reduce the spread of viruses in the classroom. In the video, an Air-Clenz device is placed on a student’s desk. When the student exhales, his breath is directed to the device via a plastic shield. The device then cleans and redistributes the air. The company says that using these individual devices allows “for the earlier removal of masks.”
Ron Blum, the inventor of Air-Clenz, said staff at the company studied the ways exhaled air leaves a person's mouth and nose to travel throughout an enclosed space. They also studied the limitations of a large-scale HVAC system in cleaning that air. Since the unit sits two feet from each student, Air-Clenz CEO Stuart Sheldon said, it captures pathogens faster and more effectively.
“Existing ventilation systems aren't built for the removal of pathogens quickly,” Sheldon said. “In fact, most of the time, ventilation systems pull unhealthy air across a room, past other people … rather than eliminating them."
HEPA Filter for the Classroom
Another firm takes a more traditional route to improving classroom IAQ by upgrading filtration. Steril-Aire announced the release of its new ceiling HEPA Pro+ air filtration system. The company claims this solution reduces the size, noise, and associated pressure drops of most HEPA systems currently on the market.
The Steril-Aire system is installed above the drop ceiling in a classroom. It runs independently of HVAC systems to eliminate pressure drop issues.
Both Air-Clenz and Steril-Aire say their solutions will provide benefits even after the pandemic ends. Air-Clenz said its air purifiers will help reduce the spread of more common viruses, such as the flu. Steril-Aire’s press release points to the ways HEPA filtration helps in areas experiencing wildfires.
Air Purification Draws Investors
Some investors see a long-term potential for IAQ products in schools. Wynd Technologies Inc., a Redwood, California-maker of AI-powered indoor air monitoring and purification technologies, announced recently the closing of a $10 million funding round, co-led by DBL Partners and Greensoil PropTech Ventures (GSPV). Wynd has been in the consumer market for air purification for years and recently moved into larger applications, including those for schools.
Wynd's Max room air purifier offers a 1,200-square-foot range. It can be paired with the company's Halo air quality monitor to create regular IAQ reports. The technology can be integrated with major HVAC systems and other products offering air purification solutions.
CEO and founder Raymond Wu started developing the technology after a trip to Beijing caused an adverse reaction due to the city’s large amount of air pollution. Nancy Pfund, founder and managing partner of DBL Partners, said her firm views Wynd Technologies as “a key ally in the movement for climate justice."
"Healthy and safe indoor air quality is a fundamental human right, not a privilege," Wu said.
HVAC contractors considering offering any of these products need to do their due diligence. There have been numerous companies promoting IAQ solutions since the start of the pandemic. Not all have lived up to the hype, while others have produced negative tradeoffs. Some may prove impractical or carry too high a cost for customers such as school districts, which are paying for most upgrades through one-time funding from grants and the federal government.
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Virginia OSHA Covid Standard
By: Frank Kollman, Management Labor Law, Kollman & Saucier, P.A. Virginia OSHA, also known as VOSH, was the first government agency to issue Covid regulations during the pandemic. VOSH continues to lead, and its requirements apply to all Virginia employers. Maryland, however, has not acted itself (MOSH).
As I explained during our last Hot Legal Topics Zoom Meeting, federal OSHA has been directed to adopt OSHA regulations for Covid for employers of 100 or more employees. A federal standard, however, will not supersede a state standard if the state standard is stricter. Under the Occupational Safety and Health Act, states can adopt stricter safety standards than OSHA requires. | About the Author
Frank Kollman I am a graduate of the Johns Hopkins University (1974) and the Syracuse University College of Law (cum laude, 1977), where I was an editor of the law review and the Survey of New York Law. I have practiced law in Maryland since 1977 and established the Firm in 1988. I was raised in South Jersey, five miles from Atlantic City, which in those days had no casinos. I could see Convention Hall from my backyard across the tidal marshlands. |
Join Frank at his Quarterly Legal Update Sessions to ask any questions you may have regarding HR, Employment, and Labor Law, complimentary!
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If there is something specific you would like Frank to discuss, email us with topics at info@aacpnet.org.
Require Proof of Vaccination?
Presented by our sponsor - Federated Insurance
Question
Can a business require employees to show proof they are vaccinated against Covid-19? If the employee is not vaccinated or refuses to show proof of vaccination can the business legally require those employees who are not vaccinated or refuses to show proof of vaccination to wear a mask inside the business?
Answer
Within the guidelines set forth by the federal Equal Employment Opportunity Commission (EEOC), employers are not prohibited from asking applicants and employees whether they have received the COVID-19 vaccine and if they have, can also request receipts of such vaccinations. We recommend reviewing this guidance which can be found at section K HERE), particularly at question K.9. which provides:
"K.9. Under the ADA, is it a 'disability-related inquiry' for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic? (12/16/20, updated 5/28/21)
No. When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability. Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.
However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential."
Thus, an employer can ask about COVID-19 vaccination statuses and for proof of the same if employees or applicants indicate they are so vaccinated. To the extent the employer will seek to make inquiry about COVID-19 vaccination status, it should do so individually and not in a group setting, and make such inquiry of all employees and/or applicants and not just some without others. The employer should determine the appropriate representative/agent to make such inquiries of employees if it does so. Individual managers or supervisors can be tasked with securing this information, or perhaps HR personnel may do so. Regardless, the employer has an obligation to ensure that those asking the questions and receiving the answers do so in a manner that maintains confidentiality as required by law. Indeed, question K.4. at the link above provides:
"Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?" (5/28/21)
Yes. The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA."
For more information, please click HERE.
The EEOC also supports employers that seek to require employees to be vaccinated as a condition of employment, so long as employers provide reasonable accommodations under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) based on any one or more employees' sincerely held religious beliefs or disability, respectively. In this regard, the EEOC guidance first linked above at question K.1. provides in part:
"Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19? (5/28/21)
The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer. … In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12)..."
As to masks and facial coverings, note as well that the Center for Disease Prevention and Control (CDC) issued guidance relaxing mask requirements for individuals who have been "fully vaccinated" against COVID-19 (see https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html). Bear in mind also that employers have long had an obligation under occupational safety and health laws to provide and preserve a safe and healthy workplace. Accordingly, employers should consult counsel before making determinations about the propriety of abandoning mask usage for personnel when at work indoors and/or on company property, and particularly as to employees who are not vaccinated or refuse to disclose their vaccination status. The federal Occupational Safety and Health Administration (OSHA) has updated its guidance following the recent adjustments by the CDC HERE which you may wish to review for more information.
Some states and locales have also passed legislation and/or issued guidance regarding mask usage and/or mask abandonment in the workplace. You will want to confer with local counsel in your jurisdiction for specific legal advice and to ensure compliance within your organization.
